LEGAL SPEAKS BLOG

LegalSpeaks is a progressive blog on legal-political issues with an impact on race and gender. Whether covering politics, court trials, Supreme Court arguments or the latest laws and bills affecting minorities and women, LegalSpeaks blog articulates unique and thought provoking opinions. The blog is not meant to be construed as legal advice.

The U.S. Department of Justice has learned what probably the residents of Ferguson, Missouri knew all along—that the majority white Ferguson Police Department engaged in a pattern and practice of violating the constitutional rights and civil rights of African Americans in Ferguson. While the Justice Department report will not be released until Wednesday, portions are said to reveal a scathing racially biased system against blacks. What is known so far more than aptly reveals why the residents of Ferguson were especially overcome and boiling over with anger and raw emotions this past summer over the killing of unarmed Michael Brown. Michael Brown was one person of many others targeted in a city full of racial bias by its police force. The numbers are startling to say the least and show a pattern of what amounted to rampant civil rights violations.

Of those stopped in their cars and searched, African Americans were 26% less likely to have anything illegal during the car search.

And here’s the one where Michael Brown was approached by Officer Wilson. 95% of all citations for walking in the street were African American.

And these are just the numbers known as of today. The full report which reviewed police data provided by the Ferguson Police Department over a period of 2 years will not be released until Wednesday. From the review of the statistics, it is clear that the Ferguson police violated the constitutional rights of its African American residents. The Ferguson Police department will now have two options. It can either enter into a settlement with the Justice Department which will require the Ferguson Police to make specific improvements to their training, hiring, retention and policies to eradicate its past illegal practices. The Ferguson Police Department could refuse and face a law suit. With the numbers shown, it is not likely that they would have a good chance of defending these figures. Whatever is decided, change will not occur overnight. But change will occur. It’s not like the Ferguson Police Department can blame these statistics on a few bad apples in their police force. These numbers speak glaringly for themselves. And they paint an alarmingly racist police force.

In the African American community in Ferguson and throughout the country, there is skepticism of fair treatment of blacks by police officers. It doesn’t matter whether it’s Ferguson, Los Angeles, New York, or southern cities, the police relations among blacks is dismal in many cities. Many white Americans almost never experience any ill will or bias directed at them by police and clearly never experience any ill treatment due to their race. And due to that fact, it makes it difficult for some whites to understand that the racial bias problem exists. And the data revealed by Ferguson’s police department shows the proof in the numbers at least for Ferguson.

Ferguson is not the first city to be found in violation of civil rights against its black residents. Twenty-five other cities have entered into settlements with the Justice Department and have included Pittsburgh (1999), New Orleans (2012), Los Angeles, Detroit and Oakland to name a few. In 1994, the Department of Justice was empowered by the Violent Crime Control and Law Enforcement Act to investigate police departments for systemic violations of constitutional rights. In the case of Los Angeles, a 12 year process occurred.

The Justice Department’s findings gives little solace to the family of Michael Brown. In a separate report, Darren Wilson, the officer responsible for killing Michael Brown has been cleared. It may give hope to a new beginning in police relations in Ferguson albeit over time. Only time will tell.

Washington, DC based Debbie Hines is a trial lawyer and former prosecutor who appears frequently in the media discussing issues on race and gender in the law.

The Department of Justice announced today that it will not seek federal civil rights violation charges against George Zimmerman for the murder of Trayvon Martin on February 26, 2012. Following the acquittal of Zimmerman in July, 2013, the Justice Department began its investigation on whether there was sufficient evidence to charge and convict Zimmerman under federal statutes. In the end, due to the high standard in these cases, Attorney General Eric Holder found that the evidence would not meet the standard of proof. While the evidence did not warrant federal criminal charges, the death of Trayvon Martin sadly remains a case that is still a bitter pill to swallow for many persons in the African American community. Trayvon Martin, armed with only iced tea and Skittle candy was approached and killed for being in a Sanford, Florida neighborhood where George Zimmerman believed that he did not belong. Wearing a hoodie, he was walking back to the home of his father’s fiancé at the time after leaving a convenience store when Zimmerman encountered him.

The Justice Department, according to the statement issued today, reviewed what amounted to thousands of pages from the trial transcript, interviewed 75 witnesses, reviewed previous criminal encounters by Zimmerman and conducted biomechanical expert analysis to assess Zimmerman’s description and account of the incident to see if there were sufficient grounds to charge Zimmerman. Unlike the state criminal case, the federal statutes under review would have required a higher finding of evidence that Zimmerman willfully which means knowingly knew he was violating the law when he approached Trayvon and ultimately shot him. In addition, the statutes under the Hate Crime Act and one involving housing rights required that the federal government prove beyond a reasonable doubt that Zimmerman committed the crime because Trayvon Martin was black. There had to be a racial motive, in this case, for the Justice Department to proceed under the federal statutes. The Department of Justice pursued the actions of Zimmerman from beginning point of the encounter to the killing to see if any evidence existed to make its case.

While many persons believe that Zimmerman did have his encounter due to Trayvon Martin’s race, proving it beyond a reasonable doubt was going to be an insurmountable task. In the end analysis, proving that George Zimmerman knew his actions were illegal or unlawful and proceeded anyway to commit threatening acts and murder due to Trayvon Martin’s race was too high of a standard for the Justice Department to meet. Coupled with the fact that Zimmerman was Hispanic, of Peruvian background, was also a factor for consideration. And let’s not forget that Florida’s Stand Your Ground laws on self-defense would factor into Zimmerman’s motives, if a trial occurred. However, Zimmerman’s attorneys are wrong with their assertions as to why the case could not be brought. Mark O’Mara and Don West said that Zimmerman was not a racist as he had black friends and tutored two black kids. That really has absolutely no bearing on whether or not he committed the crime against Trayvon Martin due to his race. The federal law requires only proof of the specific incident in question as being a willful crime committed due to a racial motive. Having a black friend does not mean that Zimmerman could not be charged under the federal statute.

The case of Trayvon Martin did spark a racial conversation. With the acquittal of Zimmerman and now the end of the federal case, the race conversation must continue. It won’t bring back Trayvon Martin, Michael Brown or Eric Garner. The race conversation must be one that continues beyond this case.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former prosecutor who appears frequently in the media addressing issues on law and politics at the intersection of race, gender and class.

While American Sniper lost in its Oscar nomination for Best Picture on Sunday, the real life American Sniper trial is set to end soon in a small court room in Stephenville, Texas. Closing arguments are set to be heard this week in the murder trial of former U.S. Navy Seal Chris Kyle, the deadliest sniper in U.S. war history. Kyle and another man, Chad Littlefield were allegedly killed on February 2, 2013 by a friend, Eddie Ray Routh. The defense clearly admits to killing Kyle and asserts he is not guilty by reason of insanity. All three men were headed to a gun shooting range on the day of the killing. Ironically, Kyle’s life ended in the manner in which he was decorated as a war hero—by a gun shot. Routh after the killing told his sister that “people were sucking his soul,” according to prosecutors. Routh suffers from PTSD, psychosis and severe schizophrenia, according to his medical experts.

Most cases of insanity are difficult to prove and amount to a battle of experts. In Texas, in order to prove a case of insanity, the defense has to prove by a preponderance of the evidence that the defendant did not know his actions were legally wrong and he suffers from a mental illness. Since many in this country do not understand mental illness, it becomes even more difficult when presented with the issue at a trial. And some persons believe the defendant, if found not guilty by reason of insanity will walk away absolutely free. That notion is far from the truth. John Hinckley, who was found not guilty by reason of insanity for shooting at President Regan and wounding James Brady, remains in a mental institution decades later. While in most criminal actions, the defendant does not need to prove anything as it does not shoulder the burden of proof, in an insanity defense, the defense must prove its defense.

And here’s what the defense has attempted to prove in its case. Their medical expert, psychiatrist Dr. Michael Dunn stated that Routh’s mental condition made it impossible for him to understand the difference between right and wrong. And video from the police car following the arrest could help Routh. In the car, Routh talks about his mental delusions and being paranoid-schizophrenia that entire fateful day. Meanwhile the prosecution’s expert states the exact opposite. The prosecution’s doctor, Randall Price, states that Routh’s mental condition is caused by his continued use of marijuana. And jurors are expected to find the truth between the two experts without any medical training or expertise. That’s the dilemma the defense finds itself in proving an insanity defense. In the final legal analysis, the murder trial for Chris Kyle’s alleged killer comes down to a dueling match between two medical experts.

Beyond the legal issues for the defense on its insanity plea lays the real issue in the case. The defense sought to have the trial removed to another location. Presiding Judge Jason Cashon refused. Stephenville is a small town where everyone knows everyone. There are signs everywhere honoring Chris Kyle as well as Kyle memorabilia being sold. Chris Kyle was the town’s home grown hero. And Routh is accused of killing him. Despite his pleas on insanity, the biggest problem will be getting a jury in a small town to side with the killer of one of their most beloved heroes. And that task will be an extremely uphill battle in the venue where the case is being tried.

Even if the judge was not going to remove the case, which should have happened, then jurors from another jurisdiction should have been brought to the county. This was done in the case of Casey Anthony where jurors from a surrounding county were re-located to hear the case in the county where the murder took place. While the efforts in relocating jurors is a hardship on jurors, the issue is always a fair trial for the defendant as our Constitution guarantees. Most of the people of Stephenville are likely thinking that they lost their town’s hero to a murder committed by Routh. Whether the jury will find Routh’s insanity defense to be valid remains to be seen. The judge has instructed the jury to refrain from reading or seeing media accounts about Chris Kyle and American Sniper. They were allowed to watch the Oscars where American Sniper was nominated. In a small town like Stephenville, jurors do not need to see media accounts to be reminded of Kyle. Memories of Chris Kyle are everywhere.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former prosecutor who maintains a boutique law practice in Washington, DC where she focuses on representing clients in civil and criminal litigation in federal and state courts. She is a former Baltimore, Maryland prosecutor where she prosecuted felonies, including homicides, sex offense and domestic violence crimes.

The Oscars had something to interest everyone on Sunday night including lawyers and politicians with acknowledgements in various acceptance speeches on equal pay for women, gender equality, Voting Rights Act, mass incarceration, suicide awareness and immigration, to name a few. I believe the newly found awareness was rooted in what occurred after the Oscar nominations were announced. After the nominations, there were many discussions about the lack of diversity in the Oscars and particularly the snub of blacks and women. After all, the voters in the Academy are overwhelmingly white males. The lack of diversity led to the Twitter hashtag #OscarsSoWhite.

This was the first year in many years where there was a blatant lack of diversity among those who were nominated. There was even talk of a boycott by the NAACP chapter in Los Angeles due to the lack of a nomination for Selma’s director Ava DuVernay, a black woman. But DuVernay advised that she did not want a boycott or any protests. If DuVernay didn’t want to make mention of her slight of being nominated for Best Director and the omission of the superb performance of David Oyelowo for his moving role as Martin Luther King, others, including John Legend and Common took to the podium to express their political statements.

Patricia Arquette who won for best supporting actress for her role in Boyhood gave a statement of fixing the gender pay gap for women as pat of her acceptance sppech. Arquette stated after the usual thank you’s, “To every woman who gave birth, to every taxpayer and citizen of this nation, we have fought for everybody else’s equal rights. It’s our time to have wage equality once and for all and equal rights for women in the United States of America!” One thing that was discovered in the Sony Hacking scandal was that many women in the acting industry are paid less than their male counterparts. I don’t know why that would come as a surprise to those in the acting community because women on average, for the same job, make only 77 cents for every dollar a man earns. And for African American women, it’s 64 cents. And for Latina women, it goes down to 53 cents. And the pay gap is not based on jobs that women take as it starts right out of college for women. And it occurs with women with advanced degrees such as law. Arquette used her limited time and platform to make a statement that is timely and worth hearing by millions.

John Legend and Common won for best original song for their rendition of Glory, the theme of the movie, Selma. While Selma was snubbed in most categories, Legend and Common used their time to make the statement that the voting rights that blacks fought for in Selma is still being fought today. Saying Selma is now should be a rallying cry. The voting rights of minorities are being compromised today with the GOP enacted voter ID laws. Legend expressed the injustices of mass incarceration with the statement that there are more blacks in prison today that during slavery in 1850. The actual fact is taken from statistics quoted in The New Jim Crow by Michelle Alexander. While blacks make up slightly more than 12% of the U.S. population, blacks who are either serving time, awaiting trial in jail, unable to make bail or on parole or probation make up more than 40% of those individuals under the criminal justice system. For those activists who are working to make a change in our criminal justice system, Legend wanted them to know that he stands with them. Sounding like a younger Harry Belafonte who walked alongside Dr. Martin Luther King in the 1960’s, Legend stated that the role of the artist is also to be an activist.

And immigration rights were on the mind of winner Mexican filmmaker Alejandro Gonzalez Inarritu for Best Director for the movie, Birdman. Inarritu stated that this country was built on immigrants and he hoped for the day when immigrants will be treated with dignity in the U.S. And he hoped for the day when Mexicans will receive the type of government that they deserve in Mexico. The Oscar acceptance speeches infused with politics were few in an otherwise long night of boring accolades. I applaud those few winners who were courageous and wise enough to use their moment in time to speak about national issues to perhaps spark a movement.

On Tuesday, Attorney General Eric Holder spoke at the Press Club in D.C. and gave what may be one of his last speeches before stepping down. He announced that there have been quantitative strides in his actions taken to reform criminal sentencing in America. Holder realized very early on that the criminal disparities in sentencing in drug cases resulted in African Americans being sentenced to higher sentences and to mandatory minimums. Attorney General Holder stated, “For years prior to this administration, federal prosecutors were not only encouraged – but required – to always seek the most severe prison sentence possible for all drug cases, no matter the relative risk they posed to public safety. I have made a break from that philosophy.” Data compiled by the U.S. Sentencing Commission shows that the efforts made by Holder have helped to dramatically reduce mandatory minimums and to reserve higher and harsher sentencing to more serious offenders. Attorney General Holder’s approach was to reserve the more severe sentences to those offenders that deserved it, instead of indiscriminately applying harsh sentences to every drug defendant coming before a federal court. The change in policies affects the nonviolent drug cases and allows the federal prosecutors to use discretion in these cases.

Attorney General Holder’s approach as Attorney General was to make America less dependent or reliant on incarceration. He noted in his speech the effect of the previous approach to criminal justice saying “After all, although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of its prisoners. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown by almost 800 percent over the same period.” And most studies have shown that this increased incarceration has not improved safety to our communities. But studies have shown that African American men and Hispanic men make up almost 50% of the U.S. prison population while black men make up 6% of the U.S. population. The Sentencing Commission confirms that numbers show that federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record.

Attorney General was responsible for having President Obama to sign the Fair Sentencing Act, which reduced the inappropriate and unjust 100-to-1 sentencing disparity between crack and powder cocaine. And although the disparate gap was reduced to approximately 18-1, it is a vast improvement. African Americans are more likely to use crack cocaine over white Americans, while white Americans more likely use powder cocaine. Yet, crack cocaine uses powder cocaine as a base. There should not be any distinction in sentencing between the two.

Perhaps, the effects of Holder’s change in U.S. attitudes to incarceration can be seen in places like Kentucky, Texas, Ohio and Pennsylvania – where governors and legislatures of both parties have provided a model for others to emulate by directing funds away from prison construction and towards programs designed to reduce recidivism. Building new prisons in communities is not the answer to the issues of criminal justice.

Overall, in Fiscal Year 2014, the U.S saw its first reduction in the federal prison population in 32 years. And perhaps, more importantly, the U.S, under Holder and the Obama administration has achieved side-by-side reductions in both crime and incarceration in more than 40 years. Holder stated that improvements and changes to the criminal justice system under his leadership are just a beginning for laying a foundation for a new era in American justice. If confirmed by the Senate, hopefully, US Attorney General nominee Loretta Lynch will continue to work on and improve upon what Attorney General Eric Holder has successfully started under the Obama Administration.

In November, 2014, DC residents and voters went to the polls and overwhelmingly by a margin of 70% voted to make marijuana legal in the District of Columbia. With DC voters’ approval of Ballot Initiative 71, the new law was enacted. Since the vote in favor of Ballot Initiative 71, two events have occurred that might either derail or give life to the legalization of marijuana in DC. In December, MD Republican Congressman Andy Harris placed a rider in the federal government spending bill that would prohibit any monies—federal or DC from being used towards a marijuana law. The District of Columbia, including Mayor Bowser, Congresswoman Eleanor Holmes Norton and DC Attorney General Karl Racine take the view that the rider has no effect as the new law was enacted in November.

The complication of the status of DC as a non-state bears on how laws become laws in the District of Columbia. Before any new law can become law in the District of Columbia, the proposed law must be submitted to Congress for a 30 day review to approve or disapprove. DC Council Chair Phil Mendelson submitted the marijuana law to Congress in January and is waiting for the expiration of the 30 day period to determine the fate of the law. The 30 day expiration period is February 26. And even if Congress approves, there is still the question of whether the Rider on the spending bill has any effect on the law. And there is always the possibility that Congress could disapprove the new marijuana law. If Congress attempts to thwart the new marijuana law and the will of DC voters, DC officials have vowed to fight the action.

Speaking optimistically, if the new marijuana law becomes law, then here’s what will happen. For adults over the age of 21, up to 2 ounces of marijuana and 3 mature marijuana plants for cultivation in one’s home for personal use would not be subject to any civil or criminal sanctions. There are some nuances to the law. First, while the possession in the stated amount is legal, it is still illegal to sell marijuana in the District of Columbia. The sale of marijuana in any amount remains illegal. Currently, there is no provision for the legal sale of marijuana. And for those individuals who smoke marijuana in public, that is still a crime, subject to 6 months in jail and $500 fine, if convicted. And the possession of marijuana in any amount on federal property and land remains illegal. Over 20% of land in the District of Columbia is federal property such as Rock Creek Park, Malcolm X Park, the Mall, monuments and federal housing. While DC Metropolitan Police will not arrest for possessing less than 2 ounces of marijuana, an individual could be arrested if impaired by marijuana while driving a vehicle.

Presently, until Congress decides on the fate of the legalization of marijuana in the District of Columbia, the law remains that possession of less than one ounce of marijuana is not subject to criminal prosecution but subject to a $25 fine. That law passed in July, 2014. Hearings are held by the Office of Administrative hearings on any cases. The proposed new law under Ballot Initiative 71 once it passes Congress’ hurdles would make null and void any civil fines. The rationale for the changes in DC’s approach towards marijuana addresses the racial disparity of blacks arrested for small amounts of marijuana versus whites. In the court system, up to 9 out of 10 cases for simple possession of small amounts of marijuana are black defendants although the racial make- up of the city for blacks is vastly less than 90%. In 2011, the black population in the District of Columbia slipped below 50% for the first time in 50 years.

Once the District of Columbia is able to proceed with the legalization of marijuana as passed through Ballot Initiative 71, the DC Council intends to further make changes to the law to regulate commercial production and sales of marijuana and tax sales like alcohol. That will probably become the battle with Congress. President Obama is in support of the District of Columbia and its ability to legalize marijuana. President Obama included in the 2016 budget a proposal that DC can spend its own funds on legalization.

Until the wait is over for Congressional approval, we will not know if the DC marijuana law will become law or subject to a court battle. Until then, stay tuned.